The Ongoing Uncertainty over Irish Law on “The Unborn”: A Comment on P.P. and Health Service Executive

–Eoin Carolan, University College Dublin, School of Law

Controversy has again arisen over Ireland’s laws on the protection of the unborn following the High Court’s decision a few days ago on Friday that it was permissible to withdraw somatic support from a pregnant woman who had been clinically brain dead for over 3 weeks.

The decision has been described by several commentators as a landmark development in Irish constitutional law. On closer inspection, however, this seems to substantially overstate its importance as a precedent. The Court’s decision was based almost entirely on the fact that the medical evidence before it was unanimous that it would be futile to continue medical intervention. The evidence summarized in the decision presented a distressing picture of a body beginning to decay with an open wound, rotting brain, swelling and multiple infections. This was far from the impression given in some early reports of the deceased as clinically dead but stable, as if in a persistent vegetative state. As the Court summarized it:

The entire medical evidence in this case goes one way only, and that is to establish that the prospects for a successful delivery of a live baby in this case are virtually non-existent …. There is un-contradicted evidence from all of the medical experts that brain death at such an early stage of pregnancy precludes any realistic hope that the baby in this case might be born alive. The Court finds as a fact that there is no realistic prospect of continuing somatic support leading to the delivery of a live baby.

Given the strength of this evidence, the most pertinent question may be not why the Court reached this conclusion but how a decision regarded by doctors, lawyers and, ultimately, by the Court as a relatively straightforward one ended up before the High Court.

The answer here lies in the ongoing ambiguity of Irish law in this area, which I have previously discussed here at I-CONnect.

Article 40. 3. 3 of the Constitution provides that:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

The broad language of Article 40. 3. 3 has been a source of some of this ambiguity. In particular, the lack of guidance as to how these “equal” rights ought to be balanced led to litigation over the legality of a suicidal teenage rape victim travelling to the United Kingdom for an abortion.

The confusion over Irish law on the unborn has, however, been significantly exacerbated by a lack of political, legislative or administrative leadership. Successive governments, seemingly paralyzed by the possibility of controversy, failed to take any decisions on abortion or embryo-related issues. Even the enactment in 2013 of a statute which permitted the ending of unborn life in certain circumstances was explained not as a government decision but rather as a de minimis giving of effect to the decision of the Supreme Court in AG v X.

While guidelines on the implementation of the 2013 Act were finally published in September of this year, there remains a lack of legal clarity about numerous issues to which Article 40. 3. 3 might be relevant. There are no specific rules, for example, on embryology, fertility treatments or stem cell research. Nor is there guidance on pregnancy-related issues that fall outside the scope of the 2013 Act. This includes situations like that in the most recent case, or instances of a fatal foetal abnormality.

In situations without specific rules, individuals, family members or medical practitioners have turned to the courts for guidance. This has led to the Supreme Court having to adjudicate in a dispute over the use of frozen pre-implantation embryos in R v R, and to the High Court being asked to authorize the withdrawal of support in last week’s case.

In this regard, the High Court decision provides limited guidance for future cases.

It seems clear from the decision that the Court, while accepting that the dignity of the deceased was recognized by the Constitution, nonetheless regarded it as subordinate to the right to life of the unborn if the two interests came into conflict:

[W]hen the mother who dies is bearing an unborn child at the time of her death, the rights of that child, who is living, and whose interests are not necessarily inimical to those just expressed, must prevail over the feelings of grief and respect for a mother who is no longer living.

The Court further construed the reference to “practicable” in Article 40. 3. 3. to mean that the courts “cannot and should not make orders which are futile, impractical or ineffective”.

Taken together, these principles underline the point that this was a case very much decided on its own particular facts. The fact that the Court regarded the life of the unborn as having a higher value to the dignity of the deceased suggests that the outcome would likely be different in cases where the evidence pointed to a non-negligible possibility of birth.

The Court also found that it was “a necessary part of vindicating that right [of the unborn] … to enquire as to the practicality and utility of continuing life support measures”. However, there was nothing to suggest that this would require a judicial process in all such cases. An approach which burdens families with unwanted litigation at times of acute emotional distress seems impossible to justify. Unfortunately, that seems to what the ongoing inertia of Ireland’s political class has created. With so much remaining unclear about so many matters, it seems inevitable that other individuals and families will find themselves forced to bring their personal tragedies before the courts.

Suggested Citation: Eoin Carolan, The Ongoing Uncertainty over Irish Law on “The Unborn”: A Comment on the Matter of P.P. and Health Service Executive, Int’l J. Const. L. Blog, Dec. 30, 2014, available at: http://www.iconnectblog.com/2014/12/the-ongoing-uncertainty-over-irish-law-on-the-unborn